Yes or No: Are You A Bigot?

by Kerry Thomas

September 22, 2006

On November 7 the voters of Wisconsin will be asked the following referendum question:

Shall Section 13 of Article XIII of the Wisconsin Constitution be created to read: Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

The proponents of this amendment say it will prohibit same sex marriages in Wisconsin. If that was the goal, why doesn’t the amendment say simply that?

As written, this amendment is poorly drafted, and will make for bad law.

You need to take a careful look at the language used in this amendment. You need to parse each word, as if you were reading a Clinton speech.

Take the first sentence. Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. It tries to define a marriage as a marriage between one man and one woman. Read it again. Recall your grade school sentence diagrams. When you take out the extras, the sentence actually says a marriage…shall be valid or recognized as a marriage.

You cannot define something as itself. It would be like trying to define an apple as an apple. As written, this sentence does not define marriage.

The second sentence is even more problematic. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. Again, you need to parse the words. It says a legal status…for unmarried individuals shall not be valid or recognized.

As a part of the Constitution, this will supercede all codes and statutes – including contract law. This will impact such things as medical powers of attorney, living wills, even inheritances. Lawyers will spend years in court, battling over the meaning of this amendment.

How does the U.S. Constitution impact such a state constitutional amendment?

Article VI of the U.S. Constitution states, in part, “This Constitution…shall be the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.”

Amendment I of the U.S. Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

Marriage is, first and foremost, a religious institution. No legislative body may prohibit any religious institution from performing a marriage according to the dictates of that religious institution. If a clergyman chooses to marry people, a legislative body cannot prohibit their marriage.

Where a government body can exercise some regulation of marriage is in the marriage contract. However, in Meister v. Moore, 96 U.S. 76 (1877) the U.S. Supreme Court ruled, “that such a contract constitutes a marriage at common law there can be no doubt. Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive.”

“No doubt, a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent.”

“And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless they contain express words of nullity.”

“It is held that all marriages regularly made according to the common law are valid and binding, though had in violation of the specific regulations imposed by statute.”

As written, the proposed amendment makes for bad law.

Beyond the legal problems this amendment will spawn, there is the moral side of the argument.

Most of the arguments I’ve heard in favor of this amendment stem from a religious conviction that views homosexuality as an abomination.

I’m no theologian, but I seem to recall something about doing unto others as you would have done unto you. Would you be so quick to give the State the power to discriminate against this group if the situation were reversed?

America has a long history of using religion to justify discrimination.

If you vote in favor of this amendment, because you believe it will prohibit same sex marriages, you’re voting to discriminate. Are you comfortable with legalized discrimination? Because “those people” offend your sensibilities, because they follow a different religious doctrine than the one you practice, are you willing to codify discrimination into law?

If your answer is yes, you are a bigot.